DOCKET NO. 060-TTC-1196
STEVE HAWKINS§BEFORE THE
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V.§ COMMISSIONER OF EDUCATION
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RIGNEY MUELLER§THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner, Steve Hawkins, requests that the Commissioner of Education take action against the teaching certificates of Respondent, Rigney Mueller.
Christopher Maska was appointed Administrative Law Judge by the Commissioner of Education to preside over this cause. Petitioner appeared pro se. Respondent is represented by Ms. Mary Carolyn Carmichael, Attorney at Law, Austin, Texas.
On May 12, 1997, the Administrative Law Judge issued a Proposal for Decision recommending that Petitioner’s appeal be dismissed for lack of jurisdiction. No exceptions were filed.
Finding
After due consideration of the record and matters officially noticed, in my capacity as Commissioner of Education, I make the following Finding:
1.Petitioner filed a complaint with the Commissioner of Education asserting that Respondent violated the Code of Ethics and Standard Practices for Texas Educators.
Discussion
Jurisdiction
Respondent contends that the Commissioner does not have jurisdiction over this case. In particular, it can be argued that the State Board for Educator Certification is the administrative agency that has jurisdiction over complaints concerning the Code of Ethics and Standard Practices for Texas Educators (hereinafter, “Code of Ethics”).
History of Code of Ethics
In 1971, the Legislature provided for the establishment of the Code of Ethics. Texas Education Code, ch. 405, §2, 1971 Tex. Gen. Laws 1479. While the Legislature gave the Teacher’s Professional Practices Commission the role of receiving complaints from educators and holding an initial hearing, the decision of the Teacher’s Professional Practices Commission on a complaint was only advisory. The Commissioner was given authority to make the final administrative decision after he held a de novo hearing. Id. 1481-1482. This system continued until 1993, when the Legislature addressed the status of a number of educational advisory commissions. In particular, the Legislature abolished Teacher’s Professional Practices Commission and repealed Texas Education Code §§13,202(2) and 13.203. Texas Education Code, ch. 771, §19(29), 1993 Tex. Gen. Laws 3025. Additionally, the Commissioner was given new authority to appoint new advisory commissions.
At first, the status of Code of Ethics complaints was unclear under the new statute. While the Teacher’s Professional Practices Commission was no longer a statutorily mandated body, the Commissioner was given the discretion to appoint such a body. The Commissioner never did so. However, the statute still provided that a complaint was initiated by filing a complaint with the commission[1]. Since there was no commission, a number of Code of Ethics complaints were dismissed. This situation changed after the Attorney General issued DM-290 concerning the Code of Ethics. The Attorney General concluded that since the Teacher’s Professional Practices Commission was only advisory, the Commissioner could hear Code of complaints even though no commission existed. The Commissioner found this argument to be persuasive and began to hold hearings on Code of Ethics complaints. Hawkins v. Harrod and Rodriguez, Docket No. 357-TTC-794, 358-TTC-794, (Comm’r Educ. 1996), (Comm’r Educ. 1996); Leyva v. Leal, Docket No. 475-TTC-795, (Comm’r Educ. 1996).
The next statutory change came with S.B.1. A new state agency, the State Board for Educator Certification (hereinafter, “SBEC”) was established to administer educational licensing. Texas Education Code §§21.031-21.055. The transition language in S.B.1, provides that Code of Ethics complaints will be heard by SBEC:
The code of ethics and standard practices adopted under Section 13.210, Education Code, as that section existed before repeal by this Act, by the Teacher’s Professional Practices Commission or by an advisory panel to the Central Education Agency under subchapter H, Chapter 11, Education Code, as that subchapter existed before the repeal by this Act, remains in effect until the effective date of a code of ethics proposed by the State Board for Educator Certification and adopted by the State Board of Education, under Section 21.041, Education Code, as added by this Act. A complaint regarding a violation of a provision of the code of ethics and standard practices in effect on January 1, 1995, as to conduct occurring while the code was in effect, shall be treated as a complaint regarding a violation of the code of ethics proposed and adopted under Section 21.041, Education Code, as added by this Act.
Texas Education Code, ch. 260, §63 (i) 1995 Tex. Gen. Laws 2499-2500. Hence, the Commissioner lacks jurisdiction over Code of Ethics and Professional Practices complaints.
One may contend that transitional provisions 63(i) and (j) should be interpreted as relieving the Commissioner of jurisdiction over cases brought under the Code of Ethics in effect on January 1, 1995, only after SBEC adopts a new Code of Ethics. A plain reading of 63 (i) and (j) forecloses this result. Transitional provision 63 (i) continues to effect only the Code of Ethics. It does not continue to effect any portion of Chapter 13, Subchapter D, which gave the Commissioner jurisdiction over Code of Ethics complaints. In the Hawkins and Leyva cases the Commissioner found Subchapter D of Chapter 13 as the basis for his jurisdiction. Transitional provision 63 (i) also specifies that a complaint concerning the Code of in effect on January 1, 1995, is to be treated as an SBEC case. Transitional provision 63 (j) continues to effect Subchapter B of Chapter 13 of the Texas Education Code. Texas Education Code, ch. 260, §63 1995 Tex. Gen. Laws 2499-2500. The operative portion of Subchapter B is Texas Education Code §13.046[2]. This is addressed below.
Jurisdiction under Texas Education Code §13.046
It may be argued that the Commissioner does have jurisdiction over Code of Ethics complaints based on his current jurisdiction over Texas Education Code §13.046:
(a) Any teacher’s certificate issued under the provisions of this code or under any previous statute relating to the certification of teachers may be suspended or canceled by the state commissioner of education under any one or more of the following circumstances:
(1) on satisfactory evidence that the holder is conducting his school or his teaching activities in violation of the school laws of the state;
(2) on satisfactory evidence that the holder is a person unworthy to instruct the youth of this state;
(3) on complaint made by the board of trustees that the holder of a certificate after entering into a written contract with the board of trustees of the district has without good cause and without the consent of the trustees abandoned the contract.
Since the Code of Ethics is also continued until SBEC adopts a new code, it can be argued that the Commissioner has jurisdiction under Texas Education Code §13.046 (a) (1-2), over Code of Ethics complaints since the Code of Ethics is part of the school laws of the state, and a teacher who violates such would be unworthy to instruct the youth. There are three primary reasons why this is not so. The first is that the transition language mandates that Code of Ethics complaints are to be treated as violations of SBEC’s statute. The second is that Code of Ethics complaints cannot be directly made into Texas Education Code §13.046 complaints. The third is that private parties have never had jurisdiction to bring a Texas Education Code §13.046 complaint.
Since the first reason has been sufficiently discussed, the second reason will be considered. When the Legislature created the process for complaints concerning the Code of Ethics, it specified that:
A violation of any rule or provision of the code of ethics and standard practices adopted in conformity with this subchapter shall be deemed “unprofessional practice,” which shall constitute grounds for suspension or revocation of the teaching certificate of the member, which grounds shall be in addition to those specified in 13.046 of this code...
Texas Education Code, ch. 405, §2, 1971 Tex. Gen. Laws 1479 repealed by Texas Education Code, (1995). Since a violation of the Code of Ethics is in addition to violations of Texas Education Code §13.046, it cannot, in itself, be a violation of Texas Education Code §13.046. This does not mean that the fact that a violation of the Code of Ethics occurred cannot be considered in determining whether an individual is unworthy to instruct the youth of the state. It only means that just because one has violated the Code of Ethics, one is not necessarily, unworthy to instruct the youth of the state. The Commissioner can look to the Code of Ethics for guidance, just as the Commissioner could look to other evidence that may constitute behavior that demonstrates unworthiness to instruct the youth of the state.
The third reason is that a third party has never had jurisdiction under Texas Education Code §13.046, or its predecessor statutes, to bring an action against a teacher’s certificate. In 1905, a successor statute to Texas Education Code §13.046 reads:
Sec. 127. Any certificate may be canceled for cause by the authority issuing it, and the State Superintendent of Public Instruction shall have power to cancel any certificate upon satisfactory evidence that the holder thereof is conducting his school in violation of the laws of the State, or a person is unworthy to instruct the youth of this State; provided, that any teacher holding a certificate to teach in the public schools of this State, who shall enter into a written contract with any board of trustees to teach in any public school in this State, and shall after making such contract and without the consent of the trustees, abandon said contract, except for good cause, such abandonment shall be considered sufficient grounds for the cancellation of said teacher’s certificate, and the same may be canceled upon the complaint of said trustees or either of them; provided, that before any certificate shall be canceled the holder thereof shall be notified, and shall have an opportunity to be heard, and he shall have the right of appeal from such decision to the State Superintendent, and the State Board of Education; provided, that when the State Superintendent shall have canceled the certificate the appeal should be to the State Board of Education.
Ch. 124, § 127, 1905 Tex. Gen. Laws 297-298, amended Ch. 157, §1, 1917 Tex. Gen. Laws 366, amended Ch. 889, §1, 1969 Tex. Gen. Laws 2794. This statute is remarkably similar to Texas Education Code §13.046. Since 1905, the Commissioner has prosecuted licensing actions against teachers, and school districts have prosecuted licensing actions against teachers alleged to have abandoned their contracts, but third parties have never been allowed to bring an action against a teacher’s certification except under the procedures concerning the Code of Ethics[3]. Unlike the provisions governing the Code of Ethics, there is no language in Texas Education Code §13.046, or its predecessors, to indicate a private cause of action. As the Commissioner has held in Markoff v Flour Bluff Independent School District, Docket No. 362-R5-794 (Comm’r Educ. 1996), “... no private party has standing to bring a Tex. Educ. Code §13.046 complaint.” The fact that this case was not assigned a TTC docket number is not significant. In the first place, docket numbers are assigned by the Hearings and Appeals secretary for tracking purposes. In the second place, a docket number does not determine the nature of a case, the pleadings do. 19 TAC 157.1047. The pleadings in Markoff indicated that it was both a student appeal and an attempt to take action against teaching certificates.
One reason why there is no private cause of action under Texas Education Code §13.046, and its predecessors, is that they are not punishment statutes. A teacher’s certificate is not revoked to punish a teacher, but to protect children:
The authority to cancel a teacher’s certificate for “unworthiness” is not conferred for the purpose of inflicting punishment on the holder. While such cancellation may be punitory in its results, those results are incidental; they are not the primary object of the law. The controlling purpose of the Legislature was evidently to insure the giving of wholesome instruction to pupils attending the public schools, by excluding teachers who were found to be morally or mentally unfit.
Marrs v. Matthews, 270 S.W. 586, 588 ( Tex. Civ. App.--Amarillo 1925, writ ref’d). Since a certificate is not canceled as punishment for a teacher harming a student, parent, taxpayer, or educator, none of these individuals has a claim to prosecute a certification action[4]. Certificates are not revoked so that one harmed by an educator’s improper actions is vindicated, but to ensure children have a good and competent teacher. The interest to be protected is a public interest, not a private interest.
There are many licensing agencies in Texas. Most have language giving them authority to take action against a licensee’s certification that is substantially similar to that found at Texas Education Code §13.046. None of these agencies allow a private party to seek the revocation of a license. For an agency to allow a private right of action would raise a number of due process issues. If Texas Education Code §13.046 was interpreted to create a private right of action, educators would risk having to defend against marginal cases. While the Commissioner can dismiss a case for failure to state a claim for which relief can be granted, just because a petition for review states a claim does not mean that a claim has any merit. 19 TAC §157.1056. While some claims may be dispensed with on summary judgment, the cost to an educator for legal representation could still be considerable. If anyone is allowed to contest an educator’s certification, there are those who will use this as an opportunity to settle scores that have nothing to do with education. Even if the Commissioner found a case to be frivolous and the result of malice he could not order that the wronged educator’s attorneys fees be paid by the losing party.
Jurisdiction under Texas Education Code §7.057
One possible source of jurisdiction over Code of Ethics complaints could be Texas Education Code §7.057:
(a) Except as provided by Subsection E, a person may appeal in writing to the commissioner if the person is aggrieved by:
(1) the school laws of this state; or
.....
(e) This section does not apply to:
(1) a case to which Subchapter G, Chapter 21, applies; or
(2) a student disciplinary action under Chapter 37.
Even if one could be said to be aggrieved by the school laws of Texas because an educator violated the Code of Ethics, this section would not provide the Commissioner with jurisdiction. If it did, the Commissioner would never lose jurisdiction over Code of Ethics complaints. There is no transition provision of S.B.1 that limits the Commissioner’s Texas Education Code §7.057 jurisdiction in this way. The Education Code is very clear that SBEC is the agency responsible for certification:
(a) The State Board for Educator Certification is established to recognize public school educators as professionals and to grant educators the authority to govern the standards of their profession. The board shall regulate and oversee all aspects of certification, continuing education, and standards of conduct of public school educators.
Texas Education Code §21.031. If there is a conflict between Texas Education Code §7.057 and Texas Education Code §21.031, the conflict is resolved in favor of SBEC due to the clear intention of the Legislature.
Authority to Conduct Hearings
This is not to say that the Commissioner may have no role in a Code of Ethics complaints. The Commissioner may conduct such hearings:
(a) The agency shall perform the following educational functions:
....
(3) The agency shall conduct hearings involving state school law at
the direction and under the supervision of the commissioner.
Texas Education Code §7.021. “State school law” is not defined in the Texas Education Code. However, in the section which provides the Commissioner’s general jurisdiction to decide cases another phrase is defined:
(f) In this section:
.....
(2) “School laws of this state” means Title 1 and this title and rules adopted under those titles.
Texas Education Code §7.057. The Commissioner is also directed to publish laws relating to primary and secondary education:
(9) The commissioner shall have a manual published at least every two years that contains Title 1 and this title, any other provisions of this code relating specifically to public primary or secondary education, and an appendix of all other state laws relating to primary or secondary education and shall provide for distribution of the manual as determined by the board.
Texas Education Code §7.055. Both a common sense understanding of the phrase, and an analysis of similar phrases in the Texas Education Code, leads to the conclusion that “state school law” includes the organic statute of the State Board for Educator Certification. Texas Education Code § 21.031 et seq.
This means that the Commissioner can do everything required to conduct a hearing. The Commissioner may make rulings, hear evidence, and cause a proposal for decision to be drafted. However, since the Commissioner’s only authority is to conduct hearings, the case to be heard is filed with SBEC not the Commissioner. The rules of procedure are the rules designated by an SBEC rule. Once a proposal for decision is drafted, it is sent to SBEC. The board of SBEC may then change the proposal for decision, so long as:
(1) a proposal for decision is served on each party; and
(2) an opportunity is given to each adversely affected party to file exceptions and present briefs to the officials who are to render the decision.
Texas Government Code §2001.062. The Commissioner’s authority concerning Titles 1 and 2 of the Education Code, does not give the Commissioner jurisdiction over a case but does allow him to conduct a hearing.
Authority by Rule
Some may contend that the Commissioner has jurisdiction over Code of Ethics complaints because SBEC has, by rule, given the Commissioner this authority. The rule at issue reads:
(c) The rules subject to this subchapter are to be construed to retain with the commissioner all authority related to administrative hearings involving educator certification and professional practices and standards of conduct under TAC 19, Chapter 137, Subchapter T, pending the adoption of rules by SBEC to assume those administrative hearings. Until such adoption, any such hearings shall be conducted by the commissioner in accordance with procedural rules adopted for hearings before the commissioner or TEA. The commissioner or his designee shall enter a final order, which may be appealed in accordance with the Texas Education Code (TEC), §7.057.
§230.901 (c), Proposed 21 TexReg 9389-9390, Adopted 21 TexReg 11485. As pointed out above, S.B.1 took away the Commissioner’s jurisdiction regarding Code of Ethics complaints. No rule can cause him to retain authority which a statute has taken away. Texas Education Code §7.057 does not give the Commissioner authority to issue a final order concerning a Code of Ethics complaint. However, this rule does allow the Commissioner to conduct Code of Ethics hearings.